Sloss Sheffield Steel & Iron Company

In the Matter of SLOSS SHEFFIELD STEEL & IRON COMPANY and BROTHERHOOD OF RAILROAD TRAINMEN In the Matter of SLOSS SHEFFIELD STEEL & IRON COMPANY and BROTHERHOOD OF LOCOMOTIvE FIREMEN AND ENGINEMEN Cases Nos. R-1302 and R-1303, respectively.Decided August 4, 1939 Pig Iron, Coke, and Coke Byproducts Industry-Investigation of Representa- tives: controversy concerning representation of employees: rival organizations; refusal by employer to bargain with petitioning craft unions because of contract granting rival organization recognition for employees whom it represented, con- tract held no bar to proceeding ; exclusive contract executed after petitions were filed held no bar to proceeding-Units Appropriate for Collective Bargaining: conductors, flagmen, brakemen, switchmen, and yard foremen in one group and engineers, firemen, and, hostlers in another group held sufficiently distinct to constitute separate units ; determining factor desire of employees in such crafts ; elections to determine-Elections Ordered: as to employees within units claimed appropriate. Mr. Berdon M. Bell and Mr. John C. McRee, for the Board. Bradley, Baldwin, All t White, by Mr. M. M. Baldwin and Mr. E. L. All, of Birmingham, Ala., for the Company: Mr. R. J. Tillery, of Cleveland, Ohio, for the B. R. T. and the B. L. F. & E. Mr. Yelverton Cowherd, of Birmingham, Ala., Mr. James Nelson, of Washington, D. C., and Mr. N. B. Maxwell, of Birmingham, Ala., for the U. M. W. A. Mr. Theodore W. Khieel, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On July 25, 1938, Brotherhood of Railroad Trainmen, herein called the B. R. T., and Brotherhood of Locomotive Firemen and Engine- men, herein called the B. L. F. & E.,' filed separate petitions with the Regional Director for the Tenth Region (Atlanta, Georgia), each i Jointly referred to herein as the Brotherhoods. 14 N. L. R. B., No. 13. 186 SLOSS SHEFFIELD STEEL & IRON COMPANY 187 alleging that a question affecting commerce had arisen concerning the representation of employees of Sloss Sheffield Steel & Iron Company, Birmingham, Alabama, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 1, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation in each case and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On February 6, 1939, the Board, acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, ordered that the cases be consolidated for the purposes of hearing. On February 8, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, upon the B. R. T., upon the B. L. F. & E., and upon District 50, United Mine Workers of America, Local 12014, herein called the U. M. W. A., a labor organization claiming to represent employees directly affected by the investigation. On March 10, 1939, the U. M. W. A. filed with the Regional Director a motion to intervene, alleging (1) that it has a contract with the Company covering the employees whom the B. R. T. and the B. L. F. & E. seek to represent; (2) that the employees in the units claimed by the B. R. T. and the B. L. F. & E. are members of the U. M. W. A.; and (3) that the units requested by the B. R. T. and B. L. F. & E. are not appropriate bargaining units. Pursuant to the notice a hearing was held on March 6 and 7, 1939, at Birmingham, Alabama, before Edward Grandison Smith, the Trial Examiner duly designated by the Board. At the commencement of the hearing, the Trial Examiner granted the U. M. W. A.'s motion to intervene. The Board, the Company, the B. R. T., the B. L. F. & E., and the U. M. W. A. were represented by counsel or official representa- tives and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made other rulings on motions and on objections to the admission of evidence. The Board has reviewed all these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the commencement of the hearing the Trial Examiner informed the parties that they were entitled to apply for oral argument before the Board at Washington, D. C., within 10 days after the hearing. None of the parties availed them- selves of this opportunity. Upon the entire record in the case, the Board makes the following : 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FA(7r I. THE BUSINESS OF THE COMPANY Sloss Sheffield Steel & Iron Company, a New Jersey corporation with main offices in Birmingham, Alabama, is engaged primarily in the manufacture, sale, and distribution of pig iron. For the purposes of its business, it owns and operates four coal mines, four ore mines, two blast furnaces, and a byproducts plant, all of which are located either in or near Birmingham, Alabama. Its various holdings are each part of a well-integrated business. Ninety-five per cent of the ore used in manufacture comes from the Company's mines. In the coke ovens of the byproducts plant, coal from the Company's mines is reduced to coke and then shipped to the blast furnaces where it is used to manufacture the crude ore into pig iron. In addition to pig iron, the Company sells coke, coal, and byproducts obtained from the manufacture of coke. For all its operations, the Company normally employs approximately 3,500 persons; at the time of the hearing it was employing 2,900. For the 12-month period ending January 31, 1939, the Company's various manufactured products weighed 1,400,000 long tons. Thirty- eight per cent were shipped to places outside the State of Alabama. For the same period, the Company used 1,600,000 long tons of raw materials in manufacture. Two per cent of these raw materials were obtained from sources outside the State of Alabama. H. THE ORGANIZATIONS INVOLVED Brotherhood of Railroad Trainmen is a labor organization admit- ting to its membership white conductors, flagmen, brakemen, switch- men, and yard foremen of the Company. Brotherhood of Locomotive Firemen and Enginemen is a labor or- ganization admitting to its membership white engineers,2 firemen, and hostlers of the Company. District No. 50, United Mine Workers of America, Local 12014, is a labor organization admitting to its membership all employees of the byproducts plant, central. power, and Mary Lee Railroad departments of the Company, excluding supervisory officials. M. THE QUESTION CONCERNING REPRESENTATION It was stipulated by all the parties that between May 11 and June 7, 1938, The Brotherhood representatives did, in fact, attempt negotia- tions looking toward an agreement on rates of pay, hours of work, 2 Sometimes referred to as enginemen. SLOSS SHEFFIELD STEEL & IRON COMPANY 189 and conditions of employment, for certain persons employed by the Sloss Sheffield Steel & Iron Company, in their Mary Lee Railroad Department; that the Company declined to enter into bargaining with the representatives on the assumption that their agreement with District 50, United Mine Workers of America, in the absence of certification from the Labor Board to the con- trary, precluded them from dealing with another labor organi- zation. The contract referred to in the stipulation was executed on May 14, 1937. It provided that it "shall be effective for one year from the date hereof and shall continue thereafter unless terminated by the Manage- ment or the Union upon thirty (30) day's written notice to the other party." By virtue of this continuation clause, the contract was in effect at the time the Brotherhoods filed their petitions on July 25, 1938. But in this contract the U. M. W. A. was recognized only as the representative of the employees whom it represented. Exclusive rec- ognition was withheld. We do not consider this contract a bar to the petitions.3 Shortly after the Brotherhoods had filed their petitions, the" Com- pany did execute a contract with the U. M. W. A. in which exclusive recognition was granted. Since this contract was made after the peti- tions were filed, it is no obstacle to this proceeding.4 We find that questions have arisen concerning the representation of employees of the Company IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION. UPON COMMERCE We find that the questions concerning representation which have arisen, occurring in connection with the operations of the Company described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The Brotherhoods are herein seeking separate units for the em- ployees of the Company engaged in the operation of an inter-plant 3 See Matter of Northrop Corporation and United Automobile Workers, Local No. 229, 3 N. L. R . B. 228. s See Matter of American-West African Line, Inc. and National Marine Engineers' Beneficial Association, 4 N. L. It. B. 1086 ; Matter of Tennessee Electric Power Company and International Brotherhood of Electrical Workers, 7 N. L. It. B. 24; Matter of American Radiator Company and Local No. 1770, Amalgamated Association of Iron, Steel d Tin Workers of North America, C. I. 0., 11 N. L. It. B. 1127. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD railroad known as the Mary Lee. This railroad, which is discussed more fully hereinafter, connects the blast furnace, byproducts plant, and coal mines of the Company. The B. R. T. seeks a unit con- sisting of the conductors, flagmen, brakemen, switchmen, and yard foremen, of whom there are 13, while the B. L. F. & E. seeks a unit of the engineers, firemen, and hostlers, of whom there are 14. The U. M. W. A. maintains that the units sought by the Brotherhoods are not appropriate. In 1933 a federal labor union, affiliated with the American Fed- eration of Labor, organized and represented employees of the Com- pany at the blast furnace, in the byproducts plant, and on the Mary Lee. This labor organization succeeded in obtaining two successive collective bargaining agreements from the Company. The record does not disclose whether these contracts granted the federal labor union exclusive recognition or recognition for its members only. In 1936 this union, together with 12 other unions similarly situated, affiliated with the U. M. W. A. in a separate division known as Dis- trict 50, which was organized to cover employees in the gas, byprod- uct coke, and chemical industries using bituminous coal as a base material. After affiliation the U. M. W. A. succeeded in obtaining a third contract from the Company on May 14, 1937, discussed above. As there noted, this contract was not an exclusive bargaining con- tract, but recognized the U. M. W. A. as representative of its mem- bers only. The Mary Lee is used by the Company primarily to haul coal from the coal mines of the Company at Flat Top and Lewisburg, Alabama, to the byproducts plant in North Birmingham, Alabama,. and coke, manufactured at the byproducts plant, to the blast furnace in Birmingham, Alabama. It also carries approximately 750 car- loads of shale, or 3 per cent of its total business, for the Lone Star Cement Company and the Alabama-Portland Cement Company.r, In all it runs a distance of approximately 27 miles, 81/2 miles over Company-owned tracks and property, 161/2 over the tracks of the Louisville & Nashville Railroad, and 11/2 over the Central Railroad of Georgia. It is operated by 42 employees. In order to operate on the tracks of the Louisville & Nashville, these employees are re- quired to pass an examination prescribed by that railroad. While the employees of the Mary Lee can be switched to other departments if necessary, and might be given fill-in jobs during slack periods, it does not appear that interchange of employment is frequent. The Mary Lee is not separately incorporated, nor is it subject to the jurisdiction of the Interstate Commerce Commission. Accord- s These companies mine shale on property leased to them by the Company . The Mary Lee hauls the shale pursuant to the leasing agreement. SLOSS SHEFFIELD STEEL & IRON COMPANY 191 ing to the superintendent of the Company, it is a department of the byproducts plant, equal in dignity to the other departments. But in the* contracts made between the U. M. W. A. and the Com- pany, hereinbefore mentioned, the Mary Lee is treated as a. division comparable in dignity to the blast furnace and byproducts plant. The agreement of May 14, 1937, has the following legend on its cover: AGREEMENT between SLOSS-SHEFFIELD STEEL AND IRON CO. covering BY- PRODUCT, POWER and MARY LEE RAILROAD DEPARTMENTS and DISTRICT 50, UNITED MINE WORKERS OF AMERICA LOCAL UNION 12014. In Matter of Wheeling Steel Corporation, Steubenville, Ohio and Order of Railway Conductors of America," we dismissed a petition filed by the Order of Railway Conductors on behalf of the brake- men, and conductors employed in the intra-plant railroad of the Wheeling Steel Corporation. We noted therein : The railroad is used chiefly to transport materials from de- partment to department within the plant and, the trains do not run outside of plant property, except for the crossing of the Pennsylvania's tracks as stated above. The work of the employees engaged in operating trains on runs known as stockhouse runs is closely interrelated with the work performed in the open-hearth furnace department. Their work is governed by the schedule of the furnaces and the open- hearth foreman exercises virtually exclusive jurisdiction over them. * * * * * * * When the Company needs additional brakemen, it secures them from among its employees. When work is slack in trans- portation the Company, rather than furlough the men, places them at other jobs in the plant. Of the 77 conductors and brakemen in the unit claimed to be appropriate, 51 have done other work in the plant either as laborers in the yard or at regular production jobs. .As. noted above, the Mary Lee acts, in effect, as a common carrier. We are unable to conclude from the facts of this case that the em- ployees engaged in its operation are so intimately associated with production that they cannot be separated from the industrial unit if they so desire. - In view of all the circumstances we will direct elections to determine the desires of these employees. Upon their 8 N. L. R. B. 102. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD choice will depend our determination of the appropriate unit or units herein. In addition to the railroad employees engaged in operating the Mary Lee, the Company employs yard crews at the blast furnace and byproducts plant. These employees do intra-plant transportation. They are in separate departments unconnected with the Mary Lee. Little or no interchange of employment occurs between them. We will therefore confine the elections to employees on the Mary Lee.7 Membership in the Brotherhoods is restricted to white employees. Asa result, one negro employee might go without membership in the labor organization representing his unit. But the B. R. T. averred that it would bargain for him even though he was not a member. We have held previously that the appropriate unit might include negro employees whom the Union does not accept as members." As we have indicated above, we shall direct that elections be held among (1) the conductors, flagmen, brakemen, switchmen, and yard foremen of the Company engaged in the operation of the Mary Lee in order to determine whether these employees wish to be represented by the B. R. T., the U. M. W. A., or by neither, and (2) the engineers, firemen, and hostlers of the Company engaged in the operation of the Mary Lee in order to determine whether these employees wish to be represented by the B. L. F. & E., the U. M. W. A., or by neither. If a majority of the conductors, flagmen, brakemen, switchmen, and yard foremen cast their votes for the B. R. T., we shall hold that the con- ductors, flagmen, brakemen, switchmen, and yard foremen constitute a separate appropriate unit and we shall certify the B. R. T. as the exclusive representative thereof. If a majority of these employees cast their votes for the U. M. W. A. and/or neither, we shall conclude therefrom that they do not desire to constitute a separate unit. In such event, we will dismiss the petition. Similarly, if a majority of the engineers, firemen, and hostlers cast their votes for the B. L. F. & E., we shall hold that the engineers, firemen, and hostlers constitute a separate appropriate unit and we shall certify the B. L. F. & E. as the exclusive representative thereof. If a majority of these employees cast their votes for the U. M. W. A. and/or neither, we shall conclude therefrom, that they do not desire to constitute a separate unit. In such event, we will dismiss the petition.a ° See Matter of Wheeling Steel Corporation , Steubenville, Ohio and Order of Railway Conductors of America, 8 N. L. R. B. 102 ; Matter of Great Lakes Steel and Brotherhood of Railroad 'Trainmen, et al., Cases Nos. R-1311, . 1312, decided this.day. s See Matter of Floyd A. Fridell, individually and trading as Carolina Marble & Granite Works and , Granite Cutters' International Association of America, Charlotte Branch,. 11 N. L. R. B. 249. ° See Matter of New York Evening Journal, Inc. and Newspaper Guild of New. York, 10 N. L. R. B. 197; Matter of Pacific Gas and Electric Company and United Electrical & Radio Workers of America, 3 N. L. R . B. 835. SLOSS SHEFFIELD STEEL & IRON COMPANY VI. THE DETERMINATION OF REPRESENTATIVES 193 During the hearing Yelverton Cowherd, attorney for the U. M. W. A., stated : Mr. Examiner, if it will help the situation, we will stipulate, for the purpose of this hearing, that each labor organization has a substantial interest, because I can see the difficulty that a man untrained in the introduction of evidence has in trying to present his testimony, and I don't believe the Board is interested in an exact list, because it is merely a question of unit breakdown, and if there is a breakdown, then there has to be an election. All the parties concurred in this stipulation. Earlier in the hearing the representatives for the Brotherhoods said, in introducing evidence of representation ... if the Board desired to use this evidence to make a cer- tification, that would be all right, and if they desire to have an election, that would be all right. Accordingly, we will direct elections among the employees in the manner above indicated. The names of the employees whom the Brotherhoods are seeking to represent were read into the record. The conductors, flagmen, brake- men, switchmen, and yard foremen engaged in the operation of the Mary Lee are listed in Appendix A and the engineers, firemen, and hostlers engaged in the operation of the Mary Lee are listed in Appendix B. In the elections which we shall direct, the employees listed in Appendices A and B, including employees in the units who have been hired since the date of hearing, but excluding those who have since quit or been discharged for cause, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW Questions affecting commerce have arisen concerning the representa- tion of employees of the Sloss Sheffield Steel & Iron Company, Birmingham, Alabama, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Rela- tions Board Rules and Regulations-Series 2, it is hereby 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargain- ing with the Sloss Sheffield Steel & Iron Company, Birmingham, Alabama, elections by secret ballot shall be conducted within fifteen (15) days from the date of this Direction, under the direction and supervision of the Regional Director for the Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among (1) the conductors, flagmen, brakemen, switchmen, and yard foremen of the Sloss Sheffield Steel & Iron Company, Birmingham, Alabama, engaged in the operation of the Mary Lee, whose names are listed in Appendix A, including those hired since the date of hearing, but excluding those who have since quit or been discharged for cause, to determine whether said employees desire to be represented by the Brotherhood of Railroad Trainmen or by District 50, United Mine Workers of America, Local 12014, for the purposes of collective bar- gaining, or by neither, and (2) the engineers, firemen, and hostlers of the Sloss Sheffield Steel & Iron Company, Birmingham, Alabama, engaged in the operation of the Mary Lee, whose names are listed in Appendix B, including those hired since the date of hearing, but ex- cluding those who have since quit or been discharged for cause, to determine whether said employees desire to be represented by the Brotherhood of Locomotive Firemen & Enginemen or by District 50, United Mine Workers of America, Local 12014, for the purposes of collective bargaining, or by neither. APPENDIX A F. H. Hambright Ethel Lindsay R. M. Stipes B. D. Honicker J. P. Clay T. H. Stanley Will Rector W. R. Tuck W. M. Rodgers S. J. Flowers F. L. Franks J. H. Dutton Temp. Conniff H. K Parker S. C. Morton C. H. Patrick Roy Taylor J. P. Roberson Paul Hambly J. C. McCarty APPENDIX B F. E. Williams R. C. Wilson J. B. Cole V. A. Davis Charles Cooper Tom Ingle J. R. Miller SLOSS SHEFFIELD STEEL & IRON COMPANY 195 MR. EDWIN S. SMITH, dissenting : I would not permit the railroad employees an opportunity to set themselves apart in bargaining units separate from the industrial unit in which the employees have been represented since 1933. My reasons are in substance those which I have set forth in other dis- senting statements 10 The U. M. W. A. and its predecessor federal labor union have, had an extensive history of collective bargaining with the Company on an industrial basis. Contractual relations have existed between them since January 1934. No other labor organization, until the advent of the Brotherhoods sometime in 1937, has claimed to represent any employees of the Company. A claim for separate craft representation had never been advanced prior to the petition by the Brotherhoods. The U. M. W. A. and the federal labor union have enjoyed an unquestioned majority status in their relations with the Company. During the hearing the U. M. W. A. averred that 99 per cent of the employees of the Company were members of its organization. This claim was not refuted nor was it disputed that prior to 1938 all the employees sought by the Brotherhoods were members of the U. M. W. A., that the U. M. W. A. has bargained for the railroad employees, that they were represented on the U. M. W. A. bargaining committee, and that since 1933 the. U. M. W. A. and the federal labor unions have suc- ceeded in obtaining substantial wage increases for them. Under these circumstances, I would dismiss the petitions. [SAME TITLE] ORDER AND AMENDMENT TO DIRECTION OF ELECTIONS August 17, 1939 On August 5, 1939, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Elections in the above-entitled proceeding. On August 12, 1939, District 50, United Mine Workers of America, Local 12014 filed with the Board a petition requesting a reconsideration by the Board of its Decision, an amendment to the Direction of Elections extending by thirty (30) days the time within which the elections may be held; and an amend- ment to the Direction of Elections excluding from the ballots the name of District 50, United Mine Workers of America, Local 12014. Due consideration having been given to the arguments and statements made in said petition, 10Matter of Alli8-0halmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N. L. R. B., 159, et al. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT Is HEREBY ORDERED that the petition for a reconsideration of the Board's Decision in the above-entitled proceeding be, and the same hereby is, denied; that the request for an amendment to the Direction of Elections extending the time within which the elections may be held be, and the same hereby is, denied; that the request for an amend- ment to the Direction of Elections excluding from the ballots the name of District 50, United Mine Workers of America, Local 12014, be, and the same hereby is, granted. AMENDMENT TO DIRECTION OF ELECTIONS The Board hereby amends its Direction of Elections in the above- entitled proceeding by striking from that portion thereof which directs an election among the conductors, flagmen, brakemen, switch- men, and yard foremen of the Sloss Sheffield Steel & Iron Company, Birmingham, Alabama, to determine whether said employees desire to be represented by the Brotherhood of Railroad Trainmen or by Dis- trict 50, United Mine Workers of America, Local 12014, or by neither the words "or by District 50, United Mine Workers of America, Local 12014," and the words "or by neither" and substituting between the words "whether said" the words "or not" and from that portion thereof which directs an election among the engineers, firemen, and hostlers of the Sloss Sheffield Steel & Iron Company, Birmingham, Alabama, to determine whether said employees desire to be represented by the Brotherhood of Locomotive Firemen and Enginemen, or by District 50, United Mine Workers of America, Local 12014, or by neither the words "or by District 50, United Mine Workers of America, Local 12014," and the words "or by neither" and substituting between the words "whether said" the words "or not." MR. EDWIN S. SMITH took no part in the consideration of the above Order and Amendment to Direction of Elections. 14 N. L. R. B., No. 13a.